Criminal Cases Against MPs/MLAs: Amicus Curiae Seeks Constitution Of Monitoring Committee For CBI, ED & NIA Cases

The Amicus Curie has informed the Supreme Court that the number of cases pending against MPs/MLAs has increased from 4122 to 4984 in two years, which shows that more and more persons with criminal antecedents are occupying the seats in the Parliament and the State Legislative Assemblies.

Senior Advocate Vijay Hansaria, who has been appointed as the Amicus Curie to assist the court in the case regarding expeditious disposal of cases against MP/ MLAs and constitution of Special courts, has made the submissions through a report before the Court. The present report is 16th in the series of reports submitted by him.

While stating that as many as 4984 such cases are pending out of which 1899 cases are more than 5 years old as per reports furnished by the Registrar General of the High Courts, the Amicus has emphasised the necessity of urgent and stringent steps being taken for expeditious disposal of pending criminal cases.

" As many as 4984 cases are pending out of which 1899 cases are more than 5 years old. It may be noted that the total number of cases pending as on December 2018 were 4110,  and as on October 2020 were 4859. Even after disposal of 2775 cases after 04.12.2018, the cases against MPs/MLAs have increased from 4122 to 4984." the report states 

The Amicus Curiae assisted by Advocate Sneha Kalita has submitted before the Supreme Court that the Central Government has not filed any response in terms of Court's order with regard to expeditious investigation and trial of cases against MPs and MLAs and providing infrastructure facilities to the Courts

According to Amicus, it is necessary that all the Courts trying cases against MPs/MLAs are equipped with necessary infrastructure for the conduct of court proceedings through internet facility.

The Amicus has sought directions to the Central Government to provide funds for ensuring smooth functioning of Courts through virtual mode i.e. by facilitating the availability of video conference facilities.

Further directions have been sought to the High Courts to submit a proposal to the Law Secretary of the Government of India in this regard as to the funds required, which shall be made available by the Central Government within two weeks of the proposal. The funds so released by the Central Government will be subject to final adjustment with the State Government as per sharing pattern.

The Amicus has sought directions for constitution of a Monitoring Committee, headed by a former Judge of the Supreme Court or Chief Justice of a High Court to monitor the investigation of cases pending before the Enforcement Directorate, Central Bureau of Investigation and National Investigation Agency.

The following are the other directions sought by the Amicus:

• The Courts dealing with cases against MPs/MLAs will exclusively try these cases. Other cases would be taken up only after trials of such cases are over.
  
• The trial would be conducted on a day to day basis in terms of section 309 Cr.P.C. Necessary allocation of work would be made by the High Court and/or the Principal Sessions Judges of every district within two weeks.
  
• Both the prosecution and defence shall cooperate with the trial of the case and no adjournment shall be granted. In case, the public prosecutor and/or the prosecution fail to co-operate in the expeditious trial, the matter shall be reported to the Chief Secretary of the State who will take necessary remedial measures. In case, the accused delays the trial, his bail shall be cancelled.
  
• The trial court shall send a report on each of the cases where trial has been pending for more than five years before the respective High Courts, as to the reasons for delay and suggest remedial measures. The High Court shall consider these reports on the judicial side in the suo motu writ petitions registered in terms of para 18 of the order dated 16.09.2020 and pass appropriate orders to remove the stagnation of trial.
  

The Supreme Court has been monitoring expeditious disposal of criminal cases against MPs/MLAs through the present case and has passed following interim orders from time to time:

(i) Order dated 01.11.2018: 

Direction to all High Courts to furnish information as regards pending criminal cases against elected representatives in a prescribed format.

(ii) Order dated 04.12.2018: 

The Bench requested each High Court to assign/allocate criminal cases involving former and sitting legislators to as many Sessions Courts and Magisterial Courts as each High Court may consider proper, fit and expedient.

The procedural steps indicated by the Amicus Curiae, to be followed by each of the designated Court except that offences punishable with imprisonment for life/death against sitting and former MPs/MLAs would be taken up on first priority followed by sequential order indicated above without creating any distinction between cases involving sitting legislators and former legislators.

(iii) Order dated 05.03.2020: 

Direction to High Courts to furnish information in a revised format as regards pendency of cases against MPs/MLAs and expected time for the completion of trial.

(iv) Order dated 16.09.2020:

Directions to Chief Justice of each High Court to formulate and submit an action plan for rationalisation of the number of Special Courts necessary. The Chief Justices were asked to consider, in the event the trials are already ongoing in an expeditious manner, whether transferring the same to a different Court would be necessary and appropriate.

(v) Order dated 04.11.2020: 

Directions that no unnecessary adjournments be granted in these matters, to prevent undue delay. The Witness Protection Scheme, 2018, approved in the case of Mahendra Chawla vs. Union of India (2019) should be strictly enforced by the Union and the States and Union Territories.

Keeping in mind the vulnerability of witnesses in such cases, the trial court may consider granting protection under the said Scheme to the witnesses without making any specific application in this regard.

(vi) Order dated 10.08.2021: 

Directions that no prosecution against a sitting or former MP/MLA shall be withdrawn under section 321 Cr.P.C. without the leave of the High Court.

The judicial officers presiding over Special courts or CBI courts involving prosecution of MPs/MLAs shall continue on their posts until further orders and shall not be transferred without leave of Supreme Court to ensure continuity of trial without disruption.

(vii) Order dated 25.08.2021: 

Directions to CBI to take necessary steps to secure the appearance of the accused and provide necessary assistance to the CBI Courts for framing charges and to proceed further to conclude the trials.

Directions to each High Court to take necessary steps to expedite the pending trials and conclude the same within the time frame already fixed by previous orders.

Directions to the Central Government and State Governments to provide necessary infrastructural facilities to the High Courts for the purposes of establishment of additional CBI/Special Courts, as the case may be.

Directions to Solicitor General to file a response to the submissions of the Amicus with respect to cases investigated by ED and CBI, and particularly with respect to the constitution of a Monitoring Committee by this Court to evaluate the reasons for delay in investigations.

Background:

The present petition was filed in the Supreme Court in 2016 demanding that convicted persons be debarred uniformly from Legislature, Executive and Judiciary.

The plea has sought directions to provide adequate infrastructure to setup Special Courts to decide criminal cases related to People Representatives Public Servants and Members of Judiciary within one year and debar the convicted persons uniformly from Legislature, Executive and Judiciary.

The plea has sought directions to implement the "Important Electoral Reforms" proposed by Election Commission, Law Commission and National Commission to Review the Working of the Constitution;

Further directions have been sought to set minimum qualification and maximum age limit for Legislatures and allow cost of the petition to petitioner.

ICase Title: Ashwini Kumar Upadhyay & Ors vs Union of India & Ors